TEXAS REDISTRICTING
The Justice Department announced today that it would be monitoring the May 29 Texas primary in select counties.
Here’s the announcement:
JUSTICE DEPARTMENT TO MONITOR ELECTIONS IN TEXAS
WASHINGTON – The Justice Department announced today that it will monitor primary elections on May 29, 2012, in Fort Bend, Harris and Jefferson Counties in Texas, to ensure compliance with the Voting Rights Act of 1965 and other federal voting rights statutes. The Voting Rights Act prohibits discrimination in the election process on the basis of race, color or membership in a minority language group. In addition, the act requires certain covered jurisdictions to provide language assistance during the election process.
Under the Voting Rights Act, the Justice Department is authorized to ask the U.S. Office of Personnel Management (OPM) to send federal observers to jurisdictions that are certified by the attorney general or by a federal court order. Federal observers will be assigned to monitor polling place activities in Fort Bend and Jefferson Counties based on the attorney general’s certification. In addition, Fort Bend is subject to a court order entered in 2009, which requires the jurisdiction to comply with the minority language and assistor of choice requirements of the Voting Rights Act, as well as the requirements of the Help America Vote Act. The observers will watch and record activities during voting hours at polling locations in these counties, and Civil Rights Division attorneys will coordinate the federal activities and maintain contact with local election officials.
In addition, Justice Department personnel will monitor polling place activities in Harris County. A Civil Rights Division attorney will coordinate federal activities and maintain contact with local election officials.
Each year, the Justice Department deploys hundreds of federal observers from OPM, as well as departmental staff, to monitor elections across the country. To file complaints about discriminatory voting practices, including acts of harassment or intimidation, voters may call the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.
Tuesday, Texas Attorney General Greg Abbott allowed depositions of 12 Texas legislators to go forward in the voter ID case notwithstanding claims of legislative privilege.
Abbott earlier had sought to block those depositions.
Instead, the court will decide legislative privilege claims on a situation-by-situatuion basis.
Tim Eaton of the Austin American-Statesman reports here.
In a 2-1 decision this morning in the Shelby County case, the D.C. Circuit Court of Appeals upheld the continued constitutionality of section 5 of the Voting Rights Act.
Writing for the majority, Judge Tatel said:
In Northwest Austin, the Supreme Court signaled that the extraordinary federalism costs imposed by section 5 raise substantial constitutional concerns. As a lower federal court urged to strike this duly enacted law of Congress, we must proceed with great caution, bound as we are by Supreme Court precedent and confined as we must be to resolve only the precise legal question before us: Does the severe remedy of preclearance remain ‘congruent and proportional’? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote - surely among the most important guarantees of political liberty in the Constitution - is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives.
Judge Williams dissented, writing that in his view that “when Congress passed the 2006 version of the VRA, it not only disregarded but flouted [constitutional] concerns.”
Judge Williams’ dissent went on to say:
Preclearance now has an exclusive focus - whether the plan diminishes the ability of minorities (always assumed to be a monolith) to ‘elect their preferred candidates of choice,’ irrespective of whether policymakers (including minority ones) decide that a group’s long-term interests might be better served by less concentration- and thus less of the political isolation that concentration spawns.
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[A] congressional mandate to assure the electoral impact of any minority’s majority seems to me to be more of a distortion than an enforcement of the 15th Amendment’s ban on abridging the ‘right of citizens of the United States to vote … on account of race, color, or previous condition of servitude.’ Preventing intentional discrimination against a minority is radically different than actively encouraging racial gerrymandering in favor of the minority (really, the majority of the minority), as § 5 does.
With the opinion out, the case almost certainly looks set to be heard by the Supreme Court in its Fall term.
The court’s opinion and Judge Williams’ dissent can be found here.
In a harshly worded order issued this afternoon, the court in the Texas voter ID case reprimanded the state for what it said were “well-documented” discovery violations “that can only be interpreted as having the aim of delaying the Defendants’ ability to receive and analyze data and documents in a timely fashion.”
The court said:
Texas has repeated ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas’ conduct with respect to producing its key state databases, which are central to Defendants’ claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants’ expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 2012 - 35 days after they were initially due. The production to Defendant-Intervenors is still not complete.
The court told Texas that “[b]ased on the record to date, this Court would be well within its discretion to continue the July 9 trial date, to impose monetary sanctions against Texas, or to keep the July 9 trial date and impose evidentiary sanctions such as an adverse inference upon Texas.”
However, the court said it would give Texas one final chance, cautioning, though, that:
[T]he only way this case can be ready for trial on July 9 is if every single future deadline, and every single condition, that are set forth in this Order can and will be met by Texas. If any of these deadlines or conditions cannot or will not be met, then the delays or ancillary litigation that will result will either make a July 9 trial impossible at all, or impossible without undue and manifest prejudice to the United States and Defendant-Intervenors. If Texas does not believe in good faith that it is able or willing to abide by all of these deadlines or conditions, then it needs to inform the Court now, so that the Court and all parties will know that the July 9 trial date is truly impossible.
The conditions imposed by the court’s order include mandates that Texas not require subpoenas for appearance of any current legislators or state employees and that Texas not assert any additional claims of privilege other than those already raised with the court.
The order also directed that Texas complete database production by Thursday, May 9, and production of all other non-privileged documents by this Friday, May 11,
The court’s order can be found here.
The three-judge panel in the Texas voter ID case has set a status conference for 3 p.m. on Thursday, May 3.
In its status conference order, the court said that it “was disinclined” to grant requests to postpone the scheduled July 9 trial in the case and said that it was “committed, if at all possible, to decide th[e] case in time for the law, if pre-cleared, to be effective for the November 2012 elections.”
The court’s order directed the parties to “meet and confer prior to the status conference and work, in good faith, to narrow all possible areas of disagreement with respect to … status, schedule, and deadlines.”
The court’s status conference order can be found here.
The three-judge panel in the South Carolina voter ID case has scheduled the case for five-day trial, running from July 26-27 and continuing August 1-3.
The court’s scheduling order also said the court intends to issue an opinion in ‘early September.’
Under the order, fact discovery closes June 22 and expert discovery ends July 3.
So for now at least, the Texas voter ID case is on track to be decided first.
The court’s scheduling order can be found here.
The State of Texas hit back hard today at a request by the Justice Department and intervenors in the Texas voter ID case to delay the scheduled July start of trial, accusing DOJ and intervenors of intentionally trying to delay the case so that the law would not be in place for the November 2012 elections.
The brief said:
It is no secret that the United States and the intervenors want to delay implementation of SB 14 until after the November 2012 elections. They initially requested a later trial date, knowing full week that such a late trial would foreclose any possibility of Texas implementing SB 14 in time for this year’s general election. Having lost the initial battle in this Court over the trial date, their fallback strategy is transparent: bombard the State with massive discovery requests (many of which are only marginally related to the issues in this case), claim that discovery is moving too slowly, and then insist that the trial date be moved.
…
There is no doubt that this case can proceed to trial on the current schedule. The issues in this case implicate a limited universe of facts. This is not a redistricting case; it is a case that turns on the purpose and effect of a discrete voting change - a change virtually identical to one already upheld by the United States Supreme Court. The Court will not need extensive testimony to determine why particular legislative decisions were made or who made them. The parties already have the benefit of a complete, publicly available record spanning two sessions of the Texas Legislature, and that record provides extensive information about the purpose of SB 14.
The state’s response brief can be found here.
This evening, the Justice Department asked the court in the Texas voter ID case to compel the State of Texas to turn over three groups of documents that it says the state is withholding in clear contravention of discovery rules.
According to the DOJ’s motion:
First, Texas has improperly asserted that the deliberative process privilege over documents in the possession, custody, or control of the Office of Governor. Second, the State has claimed a state legislative privilege extends to communications between a legislator and a state agency, as well as to purely internal documents produced by a state agency after communications with a legislator. Third, the State of Texas has incorrectly asserted that the attorney-client privilege extends to communications between the Texas Legislative Council and state legislators, although the State has not yet produced a privilege log concerning documents in the possession of the TLC.
The DOJ noted in an accompanying brief that privilege claims involving communications with the Texas Legislative Council had already been rejected once by the three-judge panel in the Texas redistricting case.
The DOJ argued that in withholding the documents, the state was deliberately trying to keep relevant evidence from being heard in court:
The ‘fundamental political right to vote’ hangs in the balance in this litigation, and ‘the possibility that qualified voters might be turned away from the polls’ requires ‘careful consideration’ of the implications of S.B. 14. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curium). The State’s serial assertions of state confidentiality rules and privileges - with varying degrees of plausibility - suggests that the State intends to limit the evidence before this Court to unchallenged declarations made on the floor of the legislature.
The DOJ motion to compel can be found here and its accompanying brief can be found here.
Separately, the state advised the court today that all 14 Republican legislators whom the DOJ and intervenors sought to depose would be asserting a legislative privilege.
In a filing late Monday night, the Justice Department joined intervenors in the Texas voter ID case in asking for postponement of the July 9 start of trial in the case, telling the court:
Texas has failed to produce critical discovery in a timely manner or at all, and has asserted wide-ranging, shifting, and sequential privilege claims that will continue to require significant resources from the parties and the Court to resolve. These discovery delays have been caused by the State’s own conduct and strategic decisions, and have occurred despite the Attorney General’s best efforts to facilitate the expedited litigation of this matter. While the Attorney General shares the parties’ and the Court’s interest in resolving this matter as quickly as is reasonable, the State’s litigation decisions and discovery delays have rendered a July 9, 2012 trial date both impractical and severely prejudicial to the Attorney General … The State of Texas, which professes that ‘implementing SB 14 for the November 2012 elections is the paramount goal of this litigation,’ (ECF 83) has taken precisely the opposite approach at every step.
DOJ said the delays had made it extremely difficult for it to review documents and to be able complete depositions before the June 15 discovery cutoff, which it noted was only three weeks before the scheduled start of trial.
The department did not propose an alternative trial date but said that the date should be reset “after all privilege motions are filed, briefed, and ruled upon.”
DOJ’s postponement request can be found here.
Intervenors in the Texas voter ID case asked the court today to delay the scheduled July 9 start of trial in the case, citing discovery delays by the State of Texas. The intervenors said the delays had already put the parties at least five weeks behind schedule.
According to the motion:
From the outset, Texas has asked for speed from others, but conducted itself as if time were not of the essence … Despite months of lead time, Texas has not been prepared to meet the very accelerated scheduled for which it petitioned this Court.
The intervenors cited to what they said was the insistence of the state on formal discovery before producing even basic documents such as transcripts of the legislative process.
More critically, they said the state had yet to produce “essential commuter data” from its voter registration, driver’s license, and concealed weapon permit databases that the intervenors said they needed to prepare detailed expert reports on the effect of the law on minority voters. They said those problems were compounded by misrepresentations by the state about the information maintained in its databases and the fact that, even when the state had produced information, it delayed in providing the intervenors with the passwords necessary to access the data.
The intervenors also said that the state’s repeated assertions of broad evidentiary privileges had “resulted in weeks, if not months, of delay in discovery.”
Texas has said unless the law is precleared by August 15, the state will not have enough time to put the law into effect for the November 2012 election.
The court has given the State of Texas until April 26 to respond to the request to delay trial.
The parties’ motion can be found here.
In an order issued this afternoon, the panel in the voter ID case declined to issue the blanket protective order sought by the State of Texas to bar depositions of 14 key legislators involved with the voter ID bill on grounds of legislative privilege.
While disagreeing with the Justice Department that “every litigated Section 5 case under the Voting Rights Act … constitutes an ‘extraordinary instance’ warranting a need to ‘intru[de] into the workings’ of the state legislature,” the court also found that the relief sought by the state was too broad:
That said, we think it inappropriate to carve out the contours of such a privilege in a blanket protective order that preemptively shields legislators and their staffs from discovery requests. Such an order - which would put us in the uncomfortable position of deciding potential issues before we even know whether they will arise - strains our preference for adjudicating concrete issues as they come.
The court noted that some legislators might choose to waive the legislative privilege, as they did in the redistricting case, and that “whether and how the privilege applies may depend on whether Texas chooses to rely on legislative testimony on the merits.”
The court said instead that:
If any legislators assert the privilege in response to specific requests for depositions or to justify withholding the production of specific communications, Defendants can move to compel in the appropriate court and Texas can oppose the motion or renew its motion for a protective order. At that point, the precise scope of the privilege can be determined.
The court’s order can be found here.
Video of Tuesday’s hearings on whether to increase the number of state board of education seats (currently set at 15):
While Texans continue the wait for a preclearance ruling from the D.C. court, Columbia Law School’s Nicholas Stephanopoulos looks at how the United States does redistricting compared with countries around the world - and finds the answer discomforting:
Compared to other countries with similar electoral systems, the American model of redistricting is an extreme outlier. And not only is the U.S. model different from its peers, it is also inferior. When it comes to elections, it’s clear that American exceptionalism is a vice, not a virtue.
District design raises three key questions, each of which America answers differently from almost every other Western democracy. The first is which institutions should have authority over the line-drawing process. Though there are exceptions, the typical position in the United States is that state politicians should hold this power, and that their decisions then should be reviewed carefully by the courts. Abroad, in contrast, districts are usually crafted by independent commissions staffed with geographers, political scientists, and the like.
The full article here.
From remarks yesterday by Assistant Attorney General Tom Perez at Rutgers Law School yesterday:
In Texas, for example, where the state asked a federal court to review its statewide redistricting plans, we have opposed the state legislature’s maps for both the State House and the Texas delegation to the United States Congress because it was our view that the state had not met its burden under Section 5 – the evidence showed, in our view, both that the maps had a retrogressive effect, and that they were enacted with an intentionally discriminatory purpose. With regard to the Congressional map, for example, Texas was allocated four new congressional seats because of population growth, and although most of that increase was caused by a growth in the Hispanic population, the state proposed adding zero additional seats as Hispanic ability-to-elect districts.
And in both the state House and Congressional maps, there was evidence that the map-drawers intentionally manipulated the map lines based on their knowledge of low Hispanic turnout in some areas to draw districts that would give the appearance of minority control, but that were actually designed to minimize minority electoral strength. We completed a full trial on the merits in that case two months ago, and we’re waiting for a written opinion from the court.
We are also involved in a number of Section 5 matters arising out of recently enacted state laws relating to voter identification requirements, voter registration requirements, and changes to early voting procedures. In December, we interposed an objection to South Carolina’s voter identification law. In March, we objected to a photo ID requirement from Texas on the ground that the law would have a retrogressive effect on Hispanic registered voters. The disparity between the percentage of Hispanics and non-Hispanics who lack these IDs ranges from 46.5% to 120% – a Hispanic registered voter is at least 46.5%, and potentially 120%, more likely than a non-Hispanic registered voter to lack the required identification.
And also last month, we filed a notice in court taking the position that several of Florida’s recent election law changes – including changes to the early voting period, changes to the procedures for third-party voter registration organizations, and changes that affect people who move between counties and want to update their address on election day – did not meet the Section 5 standard and should not be precleared.
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These are just a few examples that illustrate why the Department must – and will – continue to vigorously defend Section 5 against challenges to its constitutionality. And so far, the courts have agreed with us. A few months ago, a federal district court judge here in D.C. rejected two different constitutional challenges to Section 5 of the Voting Rights Act, and correctly noted that “Congress determined in 2006 that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment.” Those cases are now continuing on appeal, and although the litigation may be far from over, we are firmly committed to vigorously defending Section 5’s constitutionality.
Perez’s full remarks can be found here.
The Department of Justice told the panel in the Texas voter ID case in a brief filed Wednesday that depositions of Texas legislators were needed because even on the limited public record, there was “substantial indicia of discriminatory purpose, including the anticipated effect of S.B. 14, the historical background leading up to passage of the bill, and the nature of legislative debate.”
The State of Texas had earlier asked the court to block the depositions of 14 Republican legislators involved with the voter ID bill’s process through the legislature.
The DOJ brief cited, among other things, the failure of bill proponents to address substantive concerns or answer questions in floor debate about the bill’s impact on minority voters, the refusal to consider amendments that would have lessened the impact on indigent voters, and the refusal to fund studies to track the law’s impact or to education programs targeted at low-income and minority voters.
DOJ said that the state’s request to block the depositions sought “to shield from discovery the very witnesses it identified in its initial disclosures and responses to interrogatories” and that the “facts are more than sufficient to demonstrate that depositions of Texas state legislators and discovery of the documents lawmakers considered are warranted.”
The DOJ brief can be found here.
